A Virginia Circuit Court judge has ruled that the Fifth Amendment does not protect one’s fingerprint to unlock a device. However it does protect passcodes.
In a recent ruling by Virginia Beach Circuit Court Judge Steven Frucci he ruled that David Baust, an EMS captain that was charged in February with attempting to strangle his girlfriend. Is not required to give up passwords or passcodes to unlock digital devices such as a smartphone, tablets or laptops. However the suspect is required to provide a fingerprint if they own a device such as the iPhone or an iPad that has a biometric fingerprint scanner to unlocks the device. Law Enforcement may compel the suspect to provide a fingerprint to unlock the device.
This ruling is being rationalized by the statement in the Fifth Amendment that states, “no person shall be compelled in any criminal case to be a witness against himself,” or as the Miranda code states “you have the right to remain silent.” In simple terms you cannot be forced to testify against yourself or provide information that could incriminate you during the investigation of a crime. Information such as a password is knowledge and not admissible, however a fingerprint, DNA, retinal scan, handwriting, dental record or even your own image are part of a person’s BODY and those things are not protected under the Fifth Amendment.
This subtle point is not the first time that a judge has rules that a defendant or suspect can’t be compelled to provide passwords for encrypted devices. In this case however the judge ruled they may be compelled to provide a fingerprint to unlock one.
The Fifth Amendment clearly was not written with technological advances in mind. The tangled web and loopholes in it are clearly going to be tested in many ways that just were not considered when it was created. Which is another reason that it is clearly time for a Constitutional convention to update some of our OUTDATED Amendments.
Editor: I don’t agree with the Judge in this case, a person’s physical body belongs to them. Forcing a part of ones own body to help convict them seems to go against the letter of the law. However with rulings that have made DNA admissible it would seem that fingerprints would be admissible as well. In a society where our privacy is being repeatedly attacked by hackers and identity theft is becoming more and more important and I don’t think that this ruling will help us feel safer.
The Touch ID case is not as binding as a Supreme Court ruling, but it sets a precedent that other cases can draw on, Mashable noted. According to the Virginian-Pilot, it’s unclear how the ruling will impact Baust’s case. If his phone is protected by Touch ID, prosecutors could access it using Frucci’s ruling. If the phone is protected by a passcode or both a passcode and Touch ID, they can’t.
Tech Experts have long been suspicious of the Touch ID security feature and Wired’s Marcia Hoffman predicated this ruling back in 2013 when this feature started coming to market.
“We can’t invoke the privilege against self-incrimination to prevent the government from collecting biometrics like fingerprints, DNA samples, or voice exemplars”
One way around this ruling according to privacy advocates, TURN OFF your phone is a cop approach’s. In that case you would be required to enter your four-digit pin when you turn it back on, even if Touch ID is used.
In recent months Apple has come under fire from the FBI for expanding it’s data encryption model and making is more difficult for law enforcement to gain access to the information regarding people using their devices. In this case, it would appear that Apple may not have made things secure enough.